Serious Implication for Employers if the Employee Free Choice Act is Passed

Congress is considering the most significant change to federal labor law in 70 years. The proposed Employee Free Choice Act (EFCA) would fundamentally change the union organizing process and make it much easier for unions to organize employees. As proposed, EFCA will:

• Eliminate an employer’s right to insist on a secret-ballot election supervised by the National Labor Relations Board (NLRB), and instead allow a union to become the employees’ exclusive bargaining representative based solely upon the presentation of signed authorization cards from a majority of employees in the proposed bargaining unit. As a practical matter, union representatives and other employees will be able to coerce employees into signing these cards.
• Eliminate the pre-election campaign period during which employers typically communicate their position on unionization and educate employees about the downsides of unions.
• Eliminate freedom of contract by authorizing arbitrators to impose a contract binding for up to two years if the employer has not reached a first contract with a union within 120 days. Arbitrators hired by the government could tell you how much you have to pay your employees, what benefits you must offer, and what rights you have to manage your workforce and business operations.

The recent swearing in of Al Franken as the 60th senator in the Democratic Caucus makes passage of EFCA even more likely. And even if EFCA does not pass in its proposed form, we can expect labor law changes that will make union organizing easier and increase the risks employers face.

Proactive Steps Employers Can Take

As an employer, you can be proactive in protecting yourself against the increased risks of union organizing that EFCA or other labor law changes would create. Steps to take include: (1) reviewing your policies; (2) training your managers; and (3) analyzing the needs and concerns of your workforce. The Labor Relations for Management Team at Holland & Knight is ready to assist. We have the experience and knowledge to help deal with the significant new union organizing risks created by EFCA or other new labor laws.